Eolas browser plug-in patent invalidated by US Patent Office

The US Patent and Trademark Office has now stepped in and invalidated the …

Early Fall 2003, a jury found that Microsoft had infringed on a patent covering browser plug-in technology held by Eolas (much detail is available here). Eolas was awarded US$520 million, and while Microsoft appealed the ruling, the company also modified Internet Explorer to remove the infringing code. Had the Redmond giant been caught in a snare? The W3C surprised a number of analysts by coming out and backing Microsoft. Citing prior art, the W3C argued that the patent couldn't be valid, and that furthermore, it is so general that it would stifle Internet growth.

The US Patent and Trademark Office has now stepped in and invalidated the Eolas patent. The decision, if it is upheld, will clear Microsoft of charges of wrong-doing and shut down Eolas' quest for patentdom 2004. The patent was so general and so vague that were Microsoft to ultimately lose, several other companies, including AOL, would find themselves targets, too. But while this recent decision is a score for Microsoft, the half isn't over; Eolas has 60-days to respond, and with a potential payoff of half a billion dollars, you can expect them (err, or their lawyers) to not go gentle into that good night. And hey, it's not like statistics aren't on their side.

Microsoft's Desler noted that the U.S. Patent and Trademark Office has only invalidated 151 patents out of nearly 4 million patents awarded since 1988.

I don't know about you, but I almost fell off my chair when I read this. Of course, the USPTO's own re-examination process is relatively new; third parties were only able to instigate re-examination starting in 1999. What's curious is that clearly patent issues are still being taken to the court rather than the USPTO, suggesting that the process is still not very respected. Ah, what a mess. The invalidation isn't all rosy, however. In its victory, Microsoft will not be required to properly support browser plug-ins from other parties, including Apple and Macromedia. As much as one may hate Flash, this is still a bad thing.

Ken Fisher
Ken is the founder & Editor-in-Chief of Ars Technica. A veteran of the IT industry and a scholar of antiquity, Ken studies the emergence of intellectual property regimes and their effects on culture and innovation. Emailken@arstechnica.com//Twitter@kenfisher